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October 24, 2016 Practice Points

Consumer Class Action Defense: A Checklist for the First 10 Days

Some simple pointers to help defense counsel organize the litigation and make sure that nothing falls through the cracks.

By Paul Karlsgodt – October 24, 2016

Consumer class action defense often requires a delicate balance between zealous, creative, and thorough advocacy and cost-efficiency. Careful planning at the outset of litigation can be the difference between achieving an optimal outcome on one hand, and a dissatisfied client on the other. Here are some simple pointers to help defense counsel organize the litigation and make sure that nothing falls through the cracks.

Litigation Hold
Ensuring preservation of discoverable documents should always be an initial consideration for a defendant. Sanctions can result if relevant documents are destroyed after the defendant reasonably anticipates litigation, and allowing documents to be destroyed after litigation has been filed can be catastrophic. Make sure to ask your client whether a litigation hold is in place and if so, ask to review it. If not, it’s time to take immediate steps to preserve discoverable documents and data.

May companies look to hire outside counsel without first considering whether there is an insurance policy that may cover the retention and cost of defense. I always try to raise the question of insurance early on in any new engagement to make sure that the client has evaluated the possibility of insurance coverage or, if not, to give the client ideas of what to look for. Waiting too long to make an insurance claim can create inefficiencies later on, and in a worst-case scenario, can jeopardize the right to coverage and a defense.

There are very few deadlines in class-action litigation that cannot be extended, but the deadline for filing a notice of removal is one of them. A notice of removal must be filed within 30 days from the date of service, or the right to remove the case will be waived forever. For any consumer class action filed in state court, make sure you consider removal possibilities right away.

Extension of Time
Initial extensions of time of 30 to 60 days are typical in consumer class actions and are easily obtained in most jurisdictions, as long as defense counsel doesn’t wait until the last minute to make the request. Make sure you reach out to opposing counsel at the earliest possible time to make a request, and make sure that the amount of time requested is both realistic and not excessive in light of the issues in the case.

Map Out Strategy
More and more corporate defendants are demanding that outside counsel map out a litigation strategy even before making the hiring decision, but even if this hasn’t happened, it’s a good idea to evaluate an overall approach to litigation as soon as possible after the litigation is filed. Not having a litigation plan or other strategic document to guide the litigation can lead to communication problems and unnecessary defense costs, neither of which will endear you to your client.

Along with mapping out a strategy, it’s a good idea to establish a budget for the litigation, even if not specifically requested by the client. The client will appreciate that its outside counsel is mindful of defense costs, and setting up a budget in advance will help prevent any misunderstandings or disputes when it’s time to send out the bill.

Paul Karlsgodt is a partner with Baker Hostetler in Denver, Colorado.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).